NO CURFEW LTD v FEIGES PROPERTIES LTD (2018) (unreported)

An arbitrator had misunderstood expert evidence as to the split between trading and ancillary areas in a hostel and bar rent review.

The landlord had written to the arbitrator pointing out the mistake, which the arbitrator then amended and republished his award. The tenant said there had been no power to amend the award because there had been no slip or clerical error. The parties argued that there would be a serious irregularity causing substantial injustice pursuant to Section 68 of the Arbitration Act 1996 if the award was left amended (the tenant’s contention) or if it was unamended (the landlord’s contention).

The Court agreed that there was no clerical mistake or error such that the arbitrator should not have amended his award pursuant to Section 57. However, the Court did not remit the amended award because it found that there was no serious irregularity that had caused a substantial injustice pursuant to Section 68.

Key points

  • challenges are rare and extremely difficult.
  • any points of law that an arbitrator has got wrong have to be “plainly wrong” and so if there is any alternative argument, an arbitrator’s award will not be overturned.
  • the threshold for a serious irregularity under Section 68 is also extremely high given the outcome of this case.
  • we may see, as a result of this decision, more disgruntled parties writing to arbitrators seeking to correct parts of the award given the court was not prepared to step in when an arbitrator had corrected his award in an unlawful way.